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17
Court of Criminal Appeal 17 February 2009

PHAM v R

[2009] NSWCCA 25

Also reported as (2009) 193 A Crim R 190
Drugs
CRIMINAL LAW SENTENCE APPEAL PARITY WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL DISMISSED.

Citation: Pham v R [2009] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 17 February 2009
Judge(s): Giles JA, Latham J, Mathews AJ

Background

The applicant was convicted by a jury of knowingly taking part in the supply of a large commercial quantity of pseudoephedrine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1986. The offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The applicant had been part of a broader operation involving the importation of approximately 300 kilograms of pseudoephedrine (25% pure) concealed in the bases of gypsum statues shipped from Vietnam, with a potential yield of around 100 kilograms of methylamphetamine valued at approximately $37 million.

The applicant's role involved attending a storage facility, breaking open statue bases, and removing the drug. He was sentenced in the District Court to a total term of 10 years' imprisonment, comprising a non-parole period of 7 years and 6 months with a balance of 2 years and 6 months. The sentencing judge departed from the standard non-parole period, noting the applicant's more limited role in the venture, his background, and parity considerations.

The applicant sought leave to appeal that sentence on three grounds: disparity with co-offenders, manifest excess, and the post-sentence discovery of his son's developmental disability.

  • Whether the applicant's sentence was disproportionately harsh compared to sentences imposed on co-offenders Du and Lam, giving rise to a justifiable sense of grievance
  • Whether the sentence was manifestly excessive in all the circumstances
  • Whether the failure to place evidence of the applicant's son's developmental disability before the sentencing court constituted a miscarriage of justice, and whether that evidence warranted a finding of special circumstances or reduction in sentence

Decision

The Court addressed the manifest excess ground before the parity ground, noting that a parity argument becomes weaker if it cannot first be shown that the sentence itself was excessive. The Court found the sentence was not manifestly excessive. The sentencing judge had properly identified the seriousness of the offence, the applicant's knowledge of the drug operation, and his personal circumstances, including a difficult background, gambling debts that contributed to his involvement, good prospects for rehabilitation, and a largely positive work and family history. The non-parole period imposed was already half the standard non-parole period, reflecting a meaningful downward departure.

On the parity ground, the Court noted significant differences between the applicant and his co-offenders. Du pleaded guilty to a lesser Commonwealth customs offence (maximum five years) and received a suspended sentence; a supply charge against him did not proceed. Lam pleaded guilty and received a non-parole period of eight years for the supply offence. The applicant was convicted after a jury trial, and the sentencing judge had already taken parity into account. The Court found no justifiable sense of grievance arising from the comparisons advanced.

On the third ground, the Court accepted that evidence of the son's developmental disability had not been before the sentencing judge and acknowledged this may have been relevant. However, applying established principles, the Court held that the circumstances did not amount to exceptional circumstances or justify a finding of special circumstances. The applicant had not been the primary caregiver for his children, and the family was receiving support from community agencies and health professionals. The Court also noted that hardship to the applicant himself during custody did not rise to the level recognised by the courts as sufficiently unusual, such as serving a sentence as a former law enforcement officer or as a foreign national without family support.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A finding of special circumstances requires more than hardship to a prisoner's family: where other family members are available to care for a disabled child and appropriate community support exists, the courts will generally not treat that hardship as exceptional.
  • Parity arguments are considered against the backdrop of whether the sentence itself is excessive; the Court examined the parity ground only after concluding the sentence was not manifestly excessive.
  • Significant differences in the co-offenders' charges, pleas, and culpability justified the sentencing distinctions: Du faced a less serious offence with a lower maximum penalty, and Lam pleaded guilty rather than contesting the matter at trial.
  • In dismissing the appeal, the Court affirmed that conditions of custody must be materially more onerous than those experienced by the general prison population before personal hardship during incarceration will be treated as a mitigating factor of weight.
  • Post-sentence evidence of a family member's disability may be considered on appeal, but its relevance to special circumstances depends on a logical connection to the offender's need for extended post-release supervision, not merely to the general hardship of the family.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1986 (NSW), s 25(2)
- Customs Act 1901 (Cth), s 233BAA(4)

Cases
- R v Dang [2005] NSWCCA 430
- Adams v The Queen [2008] HCA 15; 82 ALJR 718
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Kerr [2003] NSWCCA 234
- R v Formosa [2005] NSWCCA 363
- Spinks v R [2007] NSWCCA 52
- Yin v R [2007] NSWCCA 350
- Kauwenberghs v R [2008] NSWCCA 98
- McGuiness v R [2008] NSWCCA 80
- Yassine v R [2008] NSWCCA 139
- Holden v R [2008] NSWCCA 100
- Eken v R [2007] NSWCCA 320
- Roberts v R [2007] NSWCCA 112
- Elsobky v R [2006] NSWCCA 168
- Le v R [2006] NSWCCA 136